Argued and Submitted November 5, 2012 —Seattle, Washington
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A089-859-690
Before: William A. Fletcher and Raymond C. Fisher, Circuit Judges, and Raymond J. Dearie, District Judge. [*]
Theodore J. Angelis and John S. Wilson (argued), K&L Gates, LLP, Seattle, Washington, for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Shelley R. Goad, Assistant Director, and Julia J. Tyler (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
The panel granted a petition for review of the Board of Immigration Appeals' decision denying asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Mexico who asserted claims based on his past military service and involvement in the arrest of several members of the Los Zetas drug cartel.
The panel held that the Board erred by concluding that the harm petitioner suffered, including attempts by unknown individuals to find him after he relocated, a drive-by shooting, and an anonymous threatening note, did not rise to the level of past persecution. The panel held that the Board erred by viewing these incidents in isolation, instead of examining the totality of the circumstances, and remanded for the Board to reconsider whether petitioner met his burden of establishing that Los Zetas were likely responsible for the incidents. The panel explained that if Los Zetas were responsible, then the record compels the conclusion that petitioner's membership in the particular social group of "former Mexican army soldiers who participated in anti-drug activity" was at least one central reason for his persecution.
The panel held that the Board erred by focusing only on the Mexican government's willingness to control Los Zetas, and remanded for the Board to consider in the first instance whether the Mexican government is able to control Los Zetas, and also whether a Mexican public official would likely acquiesce to any torture.
FISHER, Circuit Judge:
Victor Hugo Tapia Madrigal, a former member of the Mexican military, petitions for review of a decision of the Board of Immigration Appeals (BIA) denying him asylum, withholding of removal and relief under the Convention Against Torture (CAT). Because the BIA's decision employed incorrect legal standards and rests on factual findings not supported by substantial evidence, we grant the petition for review and remand to the BIA.
Tapia Madrigal is a native and citizen of Mexico. In a hearing before an immigration judge (IJ), Tapia Madrigal testified that he joined the Mexican army in 2005 at age 18.After basic training, he was assigned to a military base in the state of Jalisco, where he spent the next two-and-a-half years conducting anti-drug activities such as destroying marijuana and poppy flower crops. In mid-2007, 10 members of the Los Zetas drug cartel were arrested, including at least one high-ranking member. Tapia Madrigal was not involved in the arrest, but he assisted in transferring the arrestees from the small town where they were apprehended to civil authorities in Guadalajara. The transfer was broadcast on national television because of the importance of some of the arrestees. The national broadcast provided a clear view of Tapia Madrigal's face.
When Tapia Madrigal left his military base on authorized leave after the transfer of the arrestees, two men wearing masks kidnapped him while he was waiting for the bus not far from the base. The men covered his head, forced him into a truck and beat him with their fists, boots and heavy objects. They threatened to kill him because of his participation in transferring the arrestees, leading Tapia Madrigal to believe the men were members of Los Zetas. After 24 hours of beatings, the men released Tapia Madrigal with a message to convey: tell his commanding officer, Fortino Castillo León, that the 10 arrestees must be released or else all the people responsible for the arrest would be killed. Tapia Madrigal conveyed the message to Commander León, who did not believe the story and did not release the arrestees.
After a day off to recover from his injuries, Tapia Madrigal was sent on a three-month mission to destroy marijuana crops. When he returned to the base, he learned that all the soldiers who had arrested the 10 members of Los Zetas had been beheaded while on leave. Fearing for his safety, Tapia Madrigal decided to leave the army. He went to his family's home for a few months, but after learning that Commander León had also been killed, he discreetly moved to a small town. Whenever someone asked Tapia Madrigal's family members where he was, his family members would lie about his whereabouts. Some of the people who asked about his current location were strangers, and Tapia Madrigal believes these strangers were affiliates of Los Zetas who were trying to find him.
Four or five months later, unknown individuals shot at Tapia Madrigal from a passing car while he was walking down the street in his new town. No one else was in the vicinity, so Tapia Madrigal felt sure the bullets were intended for him. He dropped to the ground to avoid the bullets and escaped harm. The car sped up and drove away quickly. Tapia Madrigal testified that he had not made any enemies in his new town and that he ...